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Filed Washington State Court of Appeals Division Two IN THE COURT OF APPEALS OF THE STATE OF WASHINGTONOctober 6, 2020 DIVISION II STATE OF WASHINGTON, No. 52432-5-II Respondent, v. UNPUBLISHED OPINION ZACKERY CHRISTOPHER TORRENCE, Appellant. GLASGOW, J.—AA disclosed to her stepmother and another relative that Zackery Christopher Torrence, the boyfriend of AA’s biological mother, had sexually assaulted her several times when she visited Torrence’s home when she was 11 years old. The State charged Torrence with multiple counts of first degree child rape and first degree child molestation, as well as one count each of indecent liberties and second degree rape. At trial, AA testified in detail about several incidents where Torrence molested and raped her. The jury convicted Torrence on all counts and found that he had used his position of trust to facilitate the commission of the crimes. The trial court imposed an exceptional sentence based on abuse of his position of trust and the fact that Torrence’s offender score was so high that some of his crimes would go unpunished. Torrence appeals, arguing that the trial court violated his Sixth Amendment right to present a defense by excluding expert testimony on the prevalence of grooming behaviors in sexual assault cases, something he asserts was absent here. He also contends that several of his convictions constituted the same criminal conduct. He argues that he received ineffective assistance of counsel No. 52432-5-II because defense counsel failed to argue same criminal conduct at sentencing and an e-mail surprised defense counsel when it came up at trial, suggesting counsel was unprepared to try his case. Torrence also challenges a community custody condition limiting his contact with his biological children. Finally, Torrence challenges the imposition of certain legal financial obligations. He also filed a statement of additional grounds (SAG). We hold that the trial court did not violate Torrence’s Sixth Amendment rights or abuse its discretion in excluding irrelevant grooming testimony. We also hold that none of Torrence’s convictions constituted the same criminal conduct and he received effective assistance of counsel. We further hold that the trial court did not err in limiting Torrence’s contact with his children or imposing a criminal filing fee. However, the trial court erred in imposing a community supervision fee and ordering that interest accrue on Torrence’s legal financial obligations. None of the arguments in Torrence’s SAG requires reversal. We affirm Torrence’s convictions but remand for the trial court to strike the community supervision fee from his judgment and sentence and to amend the interest accrual provision to comply with RCW 10.82.090(1). FACTS AA and her sister, JA, are the daughters of Brian and Laura A.1 Brian and Laura divorced in 2004 and entered into a shared custody agreement wherein Brian was the primary caretaker and Laura saw the children every week. AA and JA lived with Brian and his wife, Savannah, in the Everett, Washington, area while Laura lived in Vancouver, Washington, where she met Torrence. Laura moved in with Torrence in Vancouver. 1 We use the initial A instead of the family’s surname to avoid easy identification of the victim. 2 No. 52432-5-II AA and JA visited Laura and Torrence for six to eight weeks in summer 2011. AA testified to multiple distinct incidents of abuse during the same week toward the end of the visit, although the order in which they occurred is unclear. In one incident, AA was watching television on the living room couch early in the morning when Torrence sat down next to her and started rubbing her chest and vagina over her clothes. He told her that everything was okay and not to be afraid. This incident formed the basis for count 1, first degree child molestation. In a second incident, Torrence came into her bedroom while AA was undressing and then proceeded to massage her legs and vagina and then insert his fingers into her vagina. Torrence told her not to be afraid and that everything was okay as he did this. This incident formed the basis for counts 2 and 3, first degree child rape and first degree child molestation. In a third incident that week, AA was again in her bedroom when Torrence came in and started taking off her clothes. This time AA resisted and tried to keep her clothes on and then tried to leave the room, but Torrence shut the door and blocked it with a toy chest. He then pushed her down onto the bed and raped her, penetrating her vagina with his penis. He told AA to be quiet or else he would hurt her sister and mom, and she complied. This incident formed the basis for counts 4 through 7, second degree rape, indecent liberties with forcible compulsion, first degree child rape, and first degree child molestation. AA also testified that in total Torrence raped her seven times and molested her several other times, all around the final week of the visit. She said that she would sometimes see blood in her underwear during this time, and she would throw her underwear away. This testimony formed the basis for counts 8 and 9, first degree child rape and first degree child molestation. 3 No. 52432-5-II Shortly after AA and JA returned from the visit to Torrence’s house, they moved with Brian and Savannah to Texas. Around this time, AA developed anger problems, which got progressively worse over time. Brian and Savannah wanted AA to go to counseling for her anger issues, but AA refused. In 2016, AA moved to Utah to stay with Savannah’s mother, Dianna Beardall, and she started going to counseling soon afterward. After a counseling session in November 2016, AA told Beardall and Savannah that Torrence had sexually abused her. They then told Brian about the allegation, and he called the police in both Vancouver and Orem, Utah, where AA was living at the time. Torrence was arrested and charged with four counts of first degree child molestation (counts 1, 3, 7, and 9), three counts of first degree child rape (counts 2, 6, and 8), one count of second degree rape (count 4), and one count of indecent liberties with forcible compulsion (count 5). For each count, the State alleged that Torrence used his position of trust or confidence to facilitate the commission of the crime. At trial AA testified extensively about the abuse described above. She never had a sexual assault examination because she did not tell anyone about the abuse for several years. Savannah testified that she saw a couple drops of blood in AA’s underwear after she returned from the summer 2011 visit. Defense counsel asked her why she had not told him about this during an earlier interview, and she stated that she did not remember until after the interview and that she promptly e-mailed the victim advocate with the information. Defense counsel then asked the court to strike this line of testimony and instruct the jury to disregard it. Outside of the presence of the jury, counsel explained that he had never received this e-mail. But the prosecutor confirmed that the e-mail had been provided in discovery. The prosecutor produced proof that 4 No. 52432-5-II defense counsel’s office had provided signed confirmation of receipt. Defense counsel admitted the e-mail was a “complete surprise” to him and moved for its admission. 5 Verbatim Report of Proceedings (VRP) at 825. The e-mail apparently explained that the blood was unrelated to the allegations of abuse and, thus, Savannah did not pursue the issue further with AA. The trial court denied the motion and excluded the e-mail because it contained hearsay—AA’s explanation for the blood was that she had cut herself shaving. In front of the jury, defense counsel then elicited testimony from Savannah that AA had given her a satisfactory explanation for the blood drops and that AA would not have been wearing this particular pair of underwear during her visit to Vancouver. The State called Dr. Christopher Johnson, a psychologist, to discuss the prevalence of delayed reporting in sexual abuse cases. On cross-examination, Torrence attempted to ask Johnson about the prevalence of “grooming” in sexual abuse cases. 4 VRP at 710. The State objected on the grounds that such testimony was outside the scope of direct examination. Torrence indicated that he would just call Johnson in his own case-in-chief, and the State then requested that the trial court determine the admissibility of such testimony at that time. The State added relevance as a basis for excluding the testimony on grooming. The State explained that it was not claiming Torrence ever groomed AA. Outside of the presence of the jury, defense counsel questioned Johnson, who testified on voir dire that grooming or building a relationship with a child is a common feature in child sexual abuse cases, and it is less common for a perpetrator to suddenly engage in sexual intercourse with a child without grooming them first. 5 No. 52432-5-II Torrence argued that the lack of evidence of grooming in this case made it less likely that Torrence abused AA because grooming is a common phenomenon in sexual abuse cases. The parties and the trial judge discussed the admissibility of this testimony in the context of relevance and ER 404(a) character evidence. The State countered that this amounted to improper “reverse propensity” evidence because it suggested that, since grooming is common among sexual abusers and Torrence did not groom AA, Torrence could not have committed the abuse.

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